Tuesday, September 29, 2015

On April 23, Petraeus pled guilty to a single misdemeanor charge of unauthorized removal and retention of classified documents or materials under 18 USC §1924. Many in the intelligence community were outraged at the perceived “slap on the wrist” he received, at a time when the Justice Department was seeking very strong penalties against lesser officials for leaks to the media.

According to the law, there are five elements that must be met for a violation of the statute, and they can all be found in section (a) of the statute: “(1) Whoever, being an officer, employee, contractor, or consultant of the United States, and, (2) by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, (3) knowingly removes such documents or materials (4) without authority and (5) with the intent to retain such documents or materials at an unauthorized location [shall be guilty of this offense].”

The Petraeus case meets those conditions. Does Clinton’s?

Clinton originally denied that any of her emails contained classified information, but soon abandoned that claim. So far, 150 emails containing classified information have been identified on her server, including two that included information determined to be Top Secret.

She then fell back on the claim that none of the emails in question was “marked classified” at the time she was dealing with them. The marking is not what makes the material classified; it’s the nature of the information itself. As secretary of state, Clinton knew this, and in fact she would have been re-briefed annually on this point as a condition of maintaining her clearance to access classified information.

Then there’s location. Clinton knowingly set up her email system to route 100 percent of her emails to and through her unsecured server (including keeping copies stored on the server). She knowingly removed such documents and materials from authorized locations (her authorized devices and secure government networks) to an unauthorized location (her server).